Cellular antennas on special district property: The opportunity and the risk

You licensed your special-district property to wireless communications companies that installed antennas and other communication facilities. You had the space. They were willing to pay for it. It just made sense. Didn't it?

Now you're not sure. The operators seem to be on your property too much _ in main corridors, in sensitive areas, everywhere. You pay staff overtime just to give them access. One company went bankrupt and now pays you nothing. Another pays rent that is a fraction of what it pays the special district across town. One surprised you by adding a large, protruding antenna, earning you frequent calls from nearby residents. Another attached a competitor's antenna but paid you nothing more. They all hint that the Federal Communications Commission may limit your authority. You are not in the telecommunications business. It wasn't supposed to be this difficult. The good news: it doesn't have to be. Special districts can license space to wireless communications companies and obtain much-needed revenue while avoiding these headaches. It just requires some basic planning and negotiation up front. Here are six tips that will help you license your special districts space successfully.

* This article was originally published in California Special District magazine, Volume 8, Issue 4, July - August 2013. The magazine is published by the California Special Districts Association. Republished here with permission from the association.

22 [Solutions & Innovations] You licensed your special-district property to wireless communications companies that installed antennas and other communications facilities. You had the space. They were willing to pay for it. It just made sense. Didn’t it? Now you’re not sure. The operators seem to be on your property too much—in main corridors, in sensitive areas, everywhere. You pay staff overtime just to give them access. One company went bankrupt and now pays you nothing. Another pays rent that is a fraction of what it pays the special district across town. One surprised you by adding a large, protruding antenna, earning you frequent calls from nearby residents. Another attached a competitor’s antenna but paid you nothing more. They all hint that the Federal Communications Commission may limit your authority. You are not in the telecommunications business. It wasn’t supposed to be this difficult. The good news: it doesn’t have to be. Special districts can license space to wireless communications companies and obtain much-needed revenue while avoiding these headaches. It just requires some basic planning and negotiation up front. Here are six tips that will help you license your special district space successfully. 1. Don’t guess at the price. An operator’s initial rent offer will often be low. Remember that the company views your property as a gold mine that allows it to sell advanced telephone and broadband service for decades. Finding this space is often difficult. But if there is a chance to grab it at a low rate for a long term, the operators won’t miss it. The lesson here is obvious: Do not sign a contract until you know the market rates. Also be sure that the contract includes escalator clauses that increase the payments over time. Think carefully about the term: A deal that automatically renews for decades may not reflect market changes. You should further add meaningful penalties, including those that address the operator’s failure to pay its rent on a timely basis. 2. Define the provider’s access and responsibilities. Special district property often consists of sensitive areas. You cannot allow just anyone to access it. Some special districts have also had difficulty with operators demanding access at irregular hours, which requires the special district to pay staff and security overtime. Address these issues up front. Your agreement should spell out what equipment the operator may place, where it may place it, and how and when it may access it. If any of these issues will impose burdens on you, you should require the company to propose and honor a solution. For example, if you require escorted access, address how. Reserve the right to require the operator to move its facilities later, at its own expense, should the district need the space for expansion or changes. Also be sure that you only grant rights that you control: if using an access road requires the operator to reach an agreement with a third party, be clear that this right is not one that you can grant. 3. Limit “co-location” rights. The operator will likely want to swap out antennas and add new ones over time. It may also try to host antennas owned by its competitors. This process is known as “colocation” or collocation. Limit the co-location that you permit automatically. Each time that an operator adds a new antenna or other facility to your property, it gains new benefits but imposes new burdens on you. You should reserve the right to approve the addition, and should be compensated for it. 4. Understand and confront any regulatory threats. You may be told that federal law and FCC rules limit how you can control your property. You should Cellular antennas on special district property: The opportunity and the risk By Gail A. Karish and Matthew K. Schettenhelm, Best Best & Krieger LLP ???????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????? ?????????????????????????????????????????????? ????????????????????????????????????????????????California Special District – July-August 2013 SHARE YOUR SOLUTIONS & INNOVATIONS Do you have a new program, process or facility that increases efficiency, reduces costs, improves service or otherwise helps make your community a better place to live? California Special District wants to know about it! Contact Nicole Dunn at nicoled@csda.net or (877) 924-2732. understand the issue, and consider confronting it with the FCC directly. Last year, Congress passed a statute at the center of the issue. The statute states that a state or local government “may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” An “eligible facilities request” is any request to modify an existing tower or base station that involves “(A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.” Unfortunately, Congress left almost all of the statute’s key terms undefined. For example, it did not define “wireless tower,” “base station,” or “substantially change the physical dimensions.” In early 2013, the FCC released non-binding “guidance” interpreting the statute. Drawing on the statute’s uncertainty, an operator could argue that you must accept many additions to the operator’s existing facilities, even when you would prefer to keep them off your property. We disagree. You have a strong argument that Congress meant only to address zoning/regulatory authority, not to restrict your fundamental property rights. The contrary view raises a serious constitutional issue. Importantly, the FCC is expected to launch a rulemaking this year to re-visit its guidance and to clarify the statute’s scope. We expect that the wireless industry will view this as an opportunity to aggressively lobby the FCC for a reading that broadly promotes its interests. To counter this, it may be important for you and other special districts to present your views on this issue. 5. Anticipate changes. You should also be prepared for the possibility that the operator with whom you contract may not hold the deal for the entire term. If an operator enters bankruptcy, for example, you could find that you receive no payments for an extended period. Carefully crafting the initial agreement can avoid this. Likewise, consider reserving the right to approve any transfer of the license to another entity. You may not want just anyone operating on your property. 6. Preserve the right to terminate the deal. Sometimes it just doesn’t work. A strong termination clause will allow you to end the agreement if the operator does not honor its commitments. You should also require the operator to remove its equipment or compensate you for such removal. In short, licensing special district property to wireless operators does make sense—just do it the right way. Be sure to address issues up front to avoid problems down the road. Gail A. Karish is an attorney in Best Best & Krieger LLP’s Ontario office where she advises local governments and numerous municipal utility clients on a wide range of cable and telecommunications law matters. This includes franchising and contract negotiations with cable, media and telecommunications companies, local, state and federal regulatory compliance, such as wireless zoning and pole attachments, interlocal cooperation and governance issues, network acquisitions, expansions, and service agreements. She can be reached at Gail.Karish@bbklaw.com Matthew K. Schettenhelm is an attorney in BB&K’s Washington, D.C. office where his practice focuses on assisting local governments and other clients with appellate litigation and telecommunications matters. He has developed wireless facility, right-of-way and cable ordinances for local governments, and has assisted with the negotiation and drafting of agreements regarding cable franchising, municipal Wi-Fi and 700 MHz public safety communications. He can be reached at Matthew.Schettenhelm@bbklaw.com. ???????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????? ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.